R v Piening - [2022] SASC 134

Supreme Court of South Australia
(Criminal)

R v PIENING
Criminal Trial by Judge Alone
[2022] SASC 134
Reasons for the Verdict of the Honourable Justice Blue
17 November 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
The defendant is charged with two counts of aggravated causing serious harm to Shane Vincent with intent to cause serious harm in contravention of subsection 23(1) of the Criminal Law Consolidation Act 1935 (SA). He elected for trial by Judge alone.
On 21 January 2021 Mr Vincent went to an address to deliver a message and money to “the boys” at the house at that address. While he was waiting outside the gates, a small silver hatchback pulled up on the other side of the road. A man got out of the vehicle. The man fired a shot from a firearm into the air. He walked across the road towards the house and fired two shots in the general direction of Mr Vincent.
The man reached Mr Vincent at the driveway gates. There was a struggle for the firearm. Mr Vincent gave evidence that, in the course of the struggle, the firearm discharged, although the prosecution contends that he was mistaken.
At some point, a bullet penetrated Mr Vincent’s left leg. The prosecution case is that this was the result of the second or third shot. This is the subject of count 1. The defence case is that the prosecution has not proved beyond reasonable doubt that it was not the result of a shot discharged during the struggle for the firearm.
Mr Vincent backed up against the side fence. The man shot Mr Vincent, the bullet penetrating his right leg. This is the subject of count 2. The man then departed.
The issues in contest are:
1In respect of both counts, whether the prosecution has proved beyond reasonable doubt that the defendant was the shooter.
2In respect of count 1, whether the prosecution has proved beyond reasonable doubt that the bullet that penetrated Mr Vincent’s left leg was the result of the second or third shot or whether it is a reasonable possibility that it was the result of a shot discharged during the struggle for the firearm.

Held:
1Having regard to all of the relevant circumstances, the prosecution has not proved beyond reasonable doubt that the wound to Mr Vincent’s left leg was caused by the assailant shooting the firearm as he was walking towards Mr Vincent, rather than the firearm discharging during the course of the struggle (at [266]).
2It follows that the prosecution has not proved beyond reasonable doubt that the assailant’s action was voluntary or that the assailant intended to cause serious bodily harm and the defendant must be found not guilty of count 1 (at [266]).
3Having regard to all of the relevant circumstances, the prosecution has proved beyond reasonable doubt that the defendant was the assailant and there is no reasonable possibility consistent with innocence that the defendant was not the assailant (at [301]).

4 Defendant found not guilty of count 1 and guilty of count 2 (at [305-306]).
Criminal Law Consolidation Act 1935 (SA) s 5AA(1) and s 23(1) ; Evidence Act 1929 (SA) s 34P and s 34R, referred to.
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Jones v Dunkel (1959) 101 CLR 298; Martin v Osborne (1936) 55 CLR 367; Plomp v The Queen (1963) 110 CLR 234; R v Micallef [2002] NSWCCA 480 (2002) 136 A Crim R 127; Shepherd v The Queen (1990) 170 CLR 573, considered.

R v PIENING
[2022] SASC 134
Criminal Trial by Judge Alone

BLUE J: The defendant, David Jeffrey Piening, is charged with two counts of aggravated causing serious harm to Shane William Jason Vincent with intent to cause serious harm.[1] He elected for trial by Judge alone.
[1] Criminal Law Consolidation Act 1935 (SA) section 23(1).
On 21 January 2021 Mr Vincent went to an address at 8 Owen Street Woodville North (the Owen Street house) to deliver a message and money to “the boys” at that address. While he was waiting outside the gates, a small silver hatchback pulled up on the other side of and further to the south on Owen Street. A man got out of the vehicle. The man fired a shot from a firearm into the air. He walked across the road towards the Owen Street house and fired two shots in the direction of Mr Vincent.
The man reached Mr Vincent at the driveway gates. There was a struggle for the firearm. Mr Vincent gave evidence that, in the course of the struggle, the firearm discharged, although the prosecution contends that he was mistaken.
At some point, a bullet penetrated Mr Vincent’s left leg. The prosecution case is that this was the result of the second or third shot. This is the subject of count 1. The defence case is that the prosecution has not proved beyond reasonable doubt that it was not the result of a shot discharged during the struggle for the firearm.
Mr Vincent backed up against the side fence. The man shot Mr Vincent, the bullet penetrating his right leg. This is the subject of count 2. The man then departed.
In respect of both counts, it is in issue whether the prosecution has proved beyond reasonable doubt that Mr Piening was the shooter. In respect of count 1, it is also in issue whether the prosecution has proved beyond reasonable doubt that the bullet that penetrated Mr Vincent’s left leg was the result of the second or third shot or whether it is a reasonable possibility that it was the result of a shot discharged during the struggle for the firearm. The prosecution concedes that, if the latter is the case, it cannot prove beyond reasonable doubt that the discharge of the firearm was voluntary or intentional.
Legal directions
Elements of the offences
Subsection 23(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act) provides:
23—Causing serious harm
(1)     A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 20 years;
(b)     for an aggravated offence—imprisonment for 25 years.
Subsection 5AA(1) of the Act defines an aggravated offence to be an offence committed in one or more of the circumstances set out in paragraphs (a) to (l). Paragraph (b) is that the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence. There is no dispute that, if Mr Piening committed either of the basic offences charged, he used an offensive weapon to commit the offence and hence no dispute that, in that event, the offence was an aggravated offence.
The five essential elements of the basic offence are:
1the defendant caused harm to the putative victim;
2the harm comprised serious harm;
3the act causing the harm was a conscious and voluntary act;
4the defendant acted unlawfully; and
5the defendant intended to cause serious harm at the time of the act.
In respect of count 1, element 1 (as to the identity of the shooter) and elements 3 and 5 are in issue. In respect of count 2, element 1 (as to the identity of the shooter) is in issue. Although I can only find the charges proved if I am satisfied beyond reasonable doubt of each of the five elements, there is no contest as to the remaining elements beyond element 1 and, in respect of count 1, elements 3 and 5.
Presumption of innocence
Mr Piening is entitled to the presumption of innocence. He can only be found guilty if I am satisfied that the prosecution has proved beyond reasonable doubt each and every element of the offence.
Mr Piening does not have to prove anything. He is not required to put forward a positive defence nor to give an explanation nor to prove a defence. It is for the prosecution to disprove it.
Mr Piening elected not to give evidence. He was not bound to give evidence. He had the right to decline to give evidence. I must not draw any inference adverse to him or the case he puts forward as a result of the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate about them.
Expert evidence
Expert opinion evidence was given by Brevet Sergeant Timothy Brooks and Brevet Sergeant Michael Tobiasen. It is a matter for me to judge the weight to be attached to their opinions having regard to their qualifications. I am entitled to accept or reject their evidence in whole or in part as I see fit.
Circumstantial case
The prosecution case that Mr Piening was the shooter and that it was the second or third shot that caused the wound to Mr Vincent’s left leg are both circumstantial cases. When considering a circumstantial case, I must proceed as follows.
First, I must look at the facts upon which the prosecution relies as circumstantial evidence in the case, and decide which facts I accept as established by the evidence. Then I must consider what inference or inferences I am prepared to draw from the totality and combined force of all the circumstances put together, regardless of the direction in which each individual circumstance may point.
To find an element proved beyond reasonable doubt when it is the subject of a circumstantial case, I must be satisfied not only that the inference of the existence of that element is a rational inference but that it is the only rational inference that arises from the circumstances. I cannot find such an element proved beyond reasonable doubt unless the circumstances exclude any reasonable explanation consistent with innocence, ie that Mr Piening was not the assailant or that a discharge of the firearm during the struggle caused the wound to Mr Vincent’s left leg.
Any indispensable intermediate steps in the reasoning process must be established beyond reasonable doubt.
In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[2] I ought not stretch credulity or engage in tortuous reasoning to explain away each and every individual circumstance as being consistent with innocence.[3]
[2] Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J.
[3] R v Micallef [2002] NSWCCA 480 (2002) 136 A Crim R 127 at [42] per Dunford J.
In Chamberlain v The Queen (No 2)[4] Gibbs CJ and Mason J said:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider “the weight which is to be given to the united force of all the circumstances put together”.[5]
[4] (1984) 153 CLR 521.
[5] At 535. (Citations omitted).
In Plomp v The Queen,[6] Dixon CJ (with whom Kitto, Taylor and Windeyer JJ agreed) said:
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.[7]
[6] (1963) 110 CLR 234.
[7] At 242.
In Martin v Osborne,[8] Dixon J (with whom Lantham CJ agreed) said:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.[9]
[8] (1936) 55 CLR 367.
[9] At 375.
Motive
A proven motive may be relevant to whether it was the defendant who committed the offence charged. A motive, when proven in a circumstantial case on the issue of identity, is simply one item of circumstantial evidence that may tend to show that it was the defendant who committed the offence in question.
However, motive is not an element of the offence and it is not necessary for the prosecution to prove that a defendant had a particular motive. There are many cases in which no motive for the commission of a crime is ever identified.
Potential witnesses not called
There were several potential witnesses who were not called to give evidence. They include George Gerazounis, Allan, Brett, Cate and Dion Doolan.
Detective Brevet Sergeant Megan Hintz gave evidence that Allan, Cate, Brett and Mr Doolan declined to provide a statement to police. I do not draw any inference against either party because these persons were not called to give evidence.
In relation to Mr Gerazounis, I was informed during the prosecution opening that he was a “potential” witness whom the prosecution might call but it did not ultimately do so. I was informed later by the defence that the defence intended to call him as a witness but it did not ultimately do so. I was not given an explanation why he was not called to give evidence and I do not speculate about it. I do not draw a Jones v Dunkel[10] inference against the prosecution in these circumstances. It cannot be said that Mr Gerazounis was in the prosecution’s camp. On Mr Vincent’s evidence, he was certainly not in his camp. Nor do I draw a Jones v Dunkel inference against the defence.
[10] (1959) 101 CLR 298 at 304.
Discreditable conduct
Evidence was adduced by the prosecution without objection by Mr Piening that, it might be argued, tended to suggest that Mr Piening engaged in discreditable conduct within the meaning of section 34P of the Evidence Act 1929 (SA) (the Evidence Act).
That evidence comprised the following evidence:
1evidence that Mr Vincent had seen Mr Piening in gaol; and
2evidence of a confrontation between Mr Piening and Mr Vincent at Mr Vincent’s property.
As the defence did not object to this evidence, I was not called on to rule on its admissibility pursuant to section 34P of the Evidence Act.
I am required by section 34R of the Evidence Act to identify and explain the purpose for which the evidence may, and may not, be used. I address the purpose for which the evidence may be used when addressing each of the above items of evidence.
The evidence may not be used to suggest that Mr Piening is more likely to have committed the offences charged because he engaged in discreditable conduct (if he did engage in the conduct and it was discreditable). For example, the evidence cannot be used to reason that, merely because Mr Piening has done bad things in the past (if he did so), he is a bad person and therefore the sort of person who is more likely to have committed the charged offences.
Background
I make the following findings of fact on matters that are largely not in dispute. Times expressed in precise terms are often taken from various CCTV recordings described below, which times have been adjusted where necessary to the correct central daylight savings time and are the subject of agreed facts.
Context
Detective Hintz gave evidence, which was not challenged and which I accept, that when the police arrived at the Owen Street house before 1 pm on 21 January 2021 seven persons were present at the house. They included Allan, Brett and Cate (each name being a pseudonym).
The Owen Street house is on the eastern side of Owen Street. It has double iron gates on the boundary giving access to a concreted driveway. The gates can be latched closed where they meet at the centre. They are constructed of ridged sheet metal at the front. In addition, they have cyclone wire at their rear at their lower level up to less than one metre.
Owen Street runs from south to north. At its southern end, it has a junction with York Place. Proceeding northwards, there is a junction of Thirteenth Avenue from the east with Owen Street. Proceeding further northwards, Owen Street is intersected by Ninth Avenue. The Owen Street house is in the block between Ninth Avenue and Thirteenth Avenue.
At the time of his arrest on 26 January 2021 Mr Piening was living in a house at 77 Leslie Street East Woodville Park (the Leslie Street house) together with a woman and her son. This is an agreed fact.
Mr Piening had exclusive use of mobile service number ending in 185 (Mr Piening’s phone number[11]). This is an agreed fact.
[11] I use this term for convenience without implying that the number was registered to Mr Piening. No evidence was adduced about registration of the phone number. Full number redacted.
Between November 2020 and February 2021 George Gerazounis was the registered owner of a silver Mazda 3 hatchback registration number XFH 354 (Mazda 354). As at 21 January 2021 he was letting other people, including Mr Piening, use the car. He does not know who was using it on that date but it was not himself. These are agreed facts.
An iPhone handset was seized by police from Cate at the Owen Street house on 21 January 2021 at 12.56 pm. The mobile service number associated with the iPhone was a number ending in 906 (Cate’s phone number[12]). These are agreed facts.
[12] I use this term for convenience without implying that the number was registered to Cate. No evidence was adduced about registration of the phone number. Full number redacted.
Chronological narrative
On 3 January 2021 Detective Brevet Sergeant Olav Goud drove past the Leslie Street house and saw Mazda 354 parked in the driveway behind the closed gates.
On the morning of 21 January 2021 Mr Vincent was sleeping in his car, a green Ford Falcon sedan. He got up at approximately 10 am. He went to the Findon Hotel.
On entering the pokies room at the Findon Hotel, Mr Vincent happened to see Dion Doolan. Mr Doolan is a cousin in the Aboriginal kinship sense. Mr Doolan was playing on the poker machines. Mr Doolan gave to Mr Vincent some methylamphetamine. Mr Vincent consumed a point and a half.
After what Mr Vincent estimated to be five or ten minutes later, Mr Vincent was driving his car when he saw Mr Doolan on the side of the road. Mr Doolan asked Mr Vincent for a ride to a house on Tapley’s Hill Road.
Mr Vincent and Mr Doolan drove to the house on Tapley’s Hill Road. Mr Doolan went inside. After what Mr Vincent estimated to be 10 to 20 minutes, Mr Doolan returned. He gave to Mr Vincent $100 and a piece of paper with a phone number written on it. He asked Mr Vincent to go to the Owen Street house, give the money to “the boys” as a down payment on half a ball of methylamphetamine together with the phone number and ask them to phone Mr Doolan.

Mr Vincent drove to the Owen Street house. He parked his car on the footpath underneath a tree outside the front of the house. He got out of the car. He looked over the front fence. Brett walked out of the front door.
Mr Vincent called out to Brett to come over and he did. Mr Vincent gave to him the $100 and the phone number. Mr Vincent asked him to phone Mr Doolan. Mr Vincent gave to him his mobile phone to call Mr Doolan. Brett went inside to make the phone call.
Mr Vincent waited outside the front gates.
After what Mr Vincent estimated to be five or ten minutes later, Brett came out of the front door of the house. Mr Vincent called out to him. Mr Vincent asked what was going on. Brett said “Yeah, they are just waiting now”.
While Mr Vincent was waiting, he saw Daniel Coulthard, a cousin in the Aboriginal kinship sense, walking down the street towards him. Mr Vincent asked him if he could stick around for a little bit. Mr Coulthard agreed to do so.
Mr Coulthard sat in Mr Vincent’s green Ford and had a smoke. He then got out of the car.
Arrival of the silver hatch
Mr Vincent saw a little hatch turn right into Owen Street from York Avenue. He saw a man get out of the driver’s seat.
Adam Cummings was working as a carpenter on the construction of a new building at 2 Owen Street. 2 Owen Street is located on the eastern side of Owen Street in the block between York Avenue and Thirteenth Avenue. He saw a late model silver hatch sedan turn right into Owen Street from York Avenue. It drove northwards past him. It parked on the western side of Owen Street just past the junction with Thirteenth Avenue. Mr Cummings estimated that this was about 200 metres from his position.
A recording from a CCTV camera located on the corner of Owen Street and York Place Woodville North (Owen Street camera 3) shows a small silver hatchback enter the vision at 12.27 pm, proceed north along Owen Street and stop on the western side. The vision is in colour and of good quality. The recording shows the driver’s door open and a man alight from the driver’s seat of the vehicle. It shows the man start to run across the road and leave the vision. Parts of the man’s body and the vehicle are obscured by a tree. It can be discerned from the contrast of light skin and dark clothing and shoes, that the man is wearing dark shorts and dark shoes. It is not possible to see if the man is carrying anything in his hands. The driver’s door remains open.
Firing of the shots
Mr Vincent saw that the man who got out of the car was holding a gun (the assailant). Mr Vincent described the gun as dark, indicated its length by holding his hands apart slightly less than one metre and said that it looked cut down. The assailant fumbled with the gun. He then fired a shot up into the air. He crossed the road towards the Owen Street house, sort of running. He fired two shots in the direction of Mr Vincent. He said words to the effect “Have you come to take some more money?”
Mr Vincent grabbed the fence. The gate on the left hand (northern) side swung open. Mr Vincent stood behind the gate. As the assailant approached him, he called out to Mr Vincent “You are dead, motherfucker”.
Mr Vincent grabbed the gun that the assailant was holding. They wrestled for the gun. The assailant had one hand on the gun with his finger near the trigger. Mr Vincent was holding the gun with two hands. The gun was pointing downwards. Mr Vincent told the assailant to go inside or go home and stop firing the gun.
It is in issue whether the gun discharged during the course of the wrestle. Mr Vincent gave evidence that the gun did discharge. He said that it just went off and he felt the ricochet from the bullet hitting the ground. He did not think at that point that he had been hit by the bullet.
Mr Vincent fell against the inside of the closed gate and dragged himself with his back up against the side fence just behind the right front gate. At that point, he noticed that his left leg was bleeding. He did not feel any pain at that point.
Mr Vincent heard the assailant fumbling around with the gun and heard a pinging sound. He saw a cartridge roll underneath the fence. He picked it up and held on to it. Brevet Sergeant Tobiasen gave evidence that he later examined the cartridge and it was unfired. This suggests that the cartridge was ejected from the firearm without the firing pin having come into contact with the cartridge.
Mr Vincent looked up and saw the assailant standing right in front of him, inside the open gate. Mr Vincent grabbed the closed gate and pulled himself towards it to protect himself as he expected the assailant to pull the trigger.
Mr Vincent heard a gunshot. He noticed that his right leg was now also bleeding. He did not feel any pain. The assailant disappeared.
After Mr Coulthard had a smoke and got out of Mr Vincent’s car, he saw a man walking up to Mr Vincent pointing a gun with a big magazine at Mr Vincent. He turned and ran a couple of houses down and jumped inside its yard. He heard two shots close together. He ran back to see if he could help Mr Vincent and found him lying on the ground bleeding.
Mr Cummings was putting up eaves on the building at 2 Owen Street when he heard three loud bangs, which he identified as gunshots based on his experience at the shooting range. He walked onto the front footpath.
Ashim Alizadeh gave his evidence through an interpreter. He had arrived in Owen Street at lunchtime sometime between noon and 1 pm. He was preparing to work as a painter at 2A Owen Street. He parked his car on the western side of Owen Street facing north. While sitting in his car, he heard multiple gunshots. He does not remember how many.
Alessandro Ferro was cycling along Owen Street travelling in the direction from York Place towards Thirteenth Avenue. He heard a loud bang. He saw a dark sedan, which he described as black and not a hatch, parked outside a house on the eastern side of the road. He saw a man holding a rifle standing, slightly crouched, on the other side of the car from the house. The man was aiming the rifle towards the house on the eastern side of the road. He had the impression that the man was taking cover behind the car. The rifle was dark, which he described as black, and he described the butt as orange. He did not see the man move.
Mr Ferro also saw a second man, who he described as black, on the left side of the shooter, standing close to the shooter but further away from Mr Ferro. He thought that the second man was wearing a cycling helmet but was not certain.
Mr Ferro heard a second bang and heard a male voice screaming as if in pain. He turned right into Thirteenth Avenue. He may have heard more than two bangs but could not be sure.
Mr Ferro waited off Thirteenth Avenue for a few minutes and then cycled back into Owen Street where he saw nothing of interest.
Departure of the silver hatch
When Mr Cummings arrived at the front footpath, he looked north down Owen Street. He saw a man walking across the road and get into the silver car. The car drove off. Mr Cummings went back into the property, got his mobile phone and telephoned the police.
Mr Alizadeh looked up when he heard the gunshots. He saw a man moving towards a silver car. The silver car was parked on the western side of Owen Street in front of and to the north of where Mr Alizadeh was parked. He estimated that the car was about 100 to 200 metres away from him. The man was coming from the direction of a green sedan on the opposite (eastern) side of the road in the pedestrian pathway outside a house on the opposite side of the road.
Mr Alizadeh saw that the man was holding a gun, the length of which he estimated at close to a metre. He saw the man get into the car. When asked which door he got into, he said the driver side. When asked whether it was the driver or passenger side, he said the passenger side. He saw the car drive off northwards down Owen Street.
The recording from Owen Street camera 3 shows the small silver Mazda hatchback stationary with the driver’s door open for 20 seconds. It then shows a man enter the driver’s seat from across the road and close the driver’s door. Parts of the man’s body are obscured by a tree, but his general movements can still be discerned (such as entering the vehicle and closing the door). The vehicle then drives off north along Owen Street and goes out of vision.
Subsequent events on that day
Mr Vincent dragged himself to his Falcon sedan assisted by Mr Coulthard. Mr Coulthard assisted him into the back seat. Mr Vincent still had the cartridge that had rolled underneath the fence when he was in the back seat. Mr Coulthard drove the car to his girlfriend’s house a couple of streets away.
At 12.31.49 pm the first 000 call was made. This is an agreed fact.
At his girlfriend’s house, Mr Coulthard got in the front passenger seat. His girlfriend drove the car to the Queen Elizabeth Hospital. Mr Vincent did not feel any pain in either leg until he was in hospital. He had gunshot wounds to both legs.
At 12.56 pm Detective Hintz arrived at the Owen Street House. Each of the seven persons present referred to at [26] above was asked to provide a statement to police and declined to do so. This was the unchallenged evidence of Detective Hintz. CCTV cameras at 8 Owen Street were operating on that day but no footage could be recovered from them. This is an agreed fact. Detective Hintz gave evidence that the hard drive had been smashed to pieces.
When the police arrived at the Owen Street house, they observed that the driveway was wet and had been apparently hosed down.
At about 2.30 pm Mr Vincent was transferred to the Royal Adelaide Hospital. He was treated by trauma surgeon Dr Joseph Dawson.
At about 3.40 pm Brevet Sergeant Brooks arrived at the Owen Street House. He examined the scene, focussing on ballistics.
On that afternoon the police found a mobile phone half buried in dirt. Subsequent checks ascertained that the phone belonged to Mr Vincent.
On that afternoon Brevet Sergeant Tobiasen arrived at the Queen Elizabeth Hospital. He examined a green Ford sedan parked in the emergency department. He observed a significant amount of blood in the rear passenger area of the vehicle. He found an unfired live 30 calibre centrefire cartridge in the left rear footwell of the vehicle.
Dr Dawson took four photographs of Mr Vincent’s legs above and below the knee before surgery:
1Photograph 1 shows a lateral view of Mr Vincent’s left leg on which there can be seen a roughly circular bullet wound.
2Photograph 2 shows a lateral view on the opposite side of Mr Vincent’s left leg on which there can be seen a roughly circular bullet wound.
3Photograph 3 shows a lateral view of Mr Vincent’s right leg on which can be seen a roughly circular bullet wound.
4Photograph 4 shows a lateral view on the opposite side of Mr Vincent’s right leg on which can be seen a roughly circular bullet wound.
The path of each wound through each leg ran in a straight line between the bullet holes. Dr Dawson could not determine which wounds were entry wounds and which were exit wounds. These are agreed facts.
It is the prosecution case that the bullet wound in photograph 1 is above Mr Vincent’s knee, whereas the bullet wound in photograph 2 is below his knee.
On initial assessment, Mr Vincent was exhibiting signs of haemorrhagic shock due to blood loss. X-rays revealed fractures through the right knee joint including the thigh bone above the knee joint and the right shin bone below the knee joint. These are agreed facts.
Mr Vincent underwent multiple surgical procedures. He was transferred to the intensive care unit at approximately 3 am on the next day. Later on that next day, he underwent external fixation of the two fractures in his right leg and a metal frame was inserted into the bone. These are agreed facts.
The gunshot wound to Mr Vincent’s right leg resulted in serious and protracted impairment in that he still walks with a limp, cannot stand for prolonged periods, cannot drive a motor vehicle and experiences pain from time to time. These are agreed facts.
The gunshot wound to Mr Vincent’s left leg threatened his life as a result of massive blood loss. This is an agreed fact.
Events earlier that day
On 21 January 2021 a CCTV camera situated at 79 Leslie Street East Woodville Park (the Leslie Street camera) was recording vision captured by the camera. The vision encompassed the driveway of the Leslie Street house next door and the footpath and roadway outside the Leslie Street house. The vision is in colour and of good quality.
At 10.36 am the Leslie Street recording shows a man matching the description of Mr Piening open the gates, get into the driver’s seat of a small silver Mazda hatch parked in the driveway, back out of the driveway and drive off to the left out of view. The last three alphanumeric characters 354 can be seen on the front number plate. The front passenger door has a horizontal strip, which is absent on the rear passenger door. The gates remain open. The man is wearing a black singlet, black shorts with white stripes down the side, white ankle socks, black shoes and distinctive sunglasses. He is bald and has tattoos visible on his right arm, left arm and right calf.
At 10.50 am the Leslie Street recording shows a small silver Mazda hatch enter the vision from the left, drive in though the open gates and park in the driveway of the Leslie Street house. A man gets out of the driver’s seat. The registration number of the vehicle can be seen to be the full registered number of Mazda 354. I find that the vehicle is Mazda 354 and that this was the vehicle that left at 10.36 am. The top half of the man can be seen in the vision. He is wearing a black singlet and distinctive sunglasses that both appear to be identical to those worn by the man who left at 10.36 am, is bald and has a face, head and upper body build that appear to be identical to those of the man who left at 10.36 am.
At 10.59 am the Leslie Street recording shows a man get into the driver’s seat of a small silver Mazda hatch, back it out of the driveway and drive off to the left out of view. The front passenger door has a horizontal strip, which is absent on the rear passenger door. The last three alphanumeric characters 354 can be seen on the front number plate. A woman closes the gate. I find that the vehicle that departed at 10.59 am was Mazda 354. The top half of the man can be seen in the vision. He is wearing a black singlet and distinctive sunglasses that both appear to be identical to those worn by the man who left at 10.36 am and the man who arrived at 10.50 am, is bald and has a face, head and upper body build that appear to be identical to those of the man who left at 10.36 am and the man who arrived at 10.50 am.
At 11.33 am the Leslie Street camera recording shows a small silver hatchback drive a short distance and stop on the road and park just outside the Leslie Street house. A man gets out of the driver’s door of the vehicle. He walks around and opens the passenger door. He emerges carrying items. He opens the front gate and walks across the driveway out of view. The man is wearing a black singlet, black shorts with white stripes down the side, white ankle socks and black shoes. He is bald, has tattoos visible on his right arm and right calf and is wearing distinctive sunglasses. He appears to be identical to the man who left at 10.36 am.
At 12.18 pm a phone call lasting 26 seconds was made by Cate’s phone number to Mr Piening’s phone number. This is an agreed fact. There is no evidence who made or received the call or as to its content.
At 12.23 pm the Leslie Street camera recording shows a man walk out of the front gate of the Leslie Street house. The man is wearing black shorts with white stripes down the side, white socks and black shoes. He is bald. He is wearing a long-sleeved, hooded top. The colour of the top appears to be a bluish grey and during the evidence it was described variously as grey or blue. The man is carrying an elongated blue bag in his right hand. The blue bag is consistent with holding a rifle but could be holding any number of things. The man is holding a dark object in his left hand. The dark object is consistent with being a mask but could be any number of other things.
The man opens the front passenger door of a small silver hatchback parked just outside the Leslie Street house. He puts the objects he is carrying through the front passenger door. He walks around and gets into the driver’s seat through the driver’s door. He moves quicker than the man seen in the earlier Leslie Street recordings. The vehicle turns left into Leslie Street, stops, reverses partially into the driveway executing a three point turn, and drives off to the right down Leslie Street. The front passenger door has a horizontal strip, which is absent on the rear passenger door. The front and rear driver’s side doors have a horizontal strip matching the front passenger door strip. The vehicle passes out of view at 12.24 pm.
At 12.25 pm a recording from a CCTV camera on Torrens Road near Panmure Place Woodville North (the Panmure Place recording) shows a small silver hatchback travelling north-west. The vision is in colour and of good quality. The front and rear driver’s side doors have a horizontal strip. The hatchback appears to be identical to Mazda 354.
At 12.25 pm a recording from a CCTV camera on Sheridan Street near Glengyle Street Woodville North (the Glengyle Street recording) shows a small silver hatchback travelling north. The vision is in colour and of good quality. The front passenger door has a horizontal strip, which is absent on the rear passenger door. The hatchback appears to be identical to Mazda 354.
At 12.26 pm a recording from a CCTV camera on Sheridan Street near Stone Street Woodville North (the Stone Street recording) shows a small silver Mazda hatchback travelling north. The vision is in colour and of good quality. The front passenger door has a horizontal strip, which is absent on the rear passenger door. The vehicle turns east into Stone Street. The hatchback appears to be identical to Mazda 354.
At 12.27 pm a recording from a CCTV camera located on the corner of Owen Street and York Place Woodville North in the same location but with a different field of view to Owen St camera 3 (Owen St camera 1) shows a small silver hatchback. The vision is in colour and of good quality. The hatchback is travelling north on Bond Street. It stops at the junction of Bond Street with York Place. It remains stationary for 20 seconds without any cars passing along York Place.
The hatchback then turns left into York Place. It proceeds west along York Place and goes out of vision. The front and rear driver’s side doors of the hatchback have a horizontal strip. As the hatchback goes out of vision, a cyclist enters the vision turning left from Bond Street into York Place. The cyclist proceeds along York Place and goes out of vision approximately eight seconds after the hatchback goes out of vision. The hatchback appears to be identical to Mazda 354.
A map of Woodville North and Woodville Park shows a postulated route from the Leslie Street house to the Owen Street house travelling along Leslie Street, Jelley Street, Torrens Road, Sheridan Street, Stone Street, Caskey Street, Edgecombe Street, Bond Court, York Place and Owen Street. This route is consistent with the CCTV recordings referred to above. Although it is not the only possible route between the two houses, it is a logical route to follow.
At 12.27 pm a recording from a second CCTV camera in the same location but with a different field of view (Owen Street camera 2) shows a small silver hatchback driving along York Place, turning north into Owen Street and going out of vision. The vision is in colour and of good quality. The front and rear driver’s side doors have a horizontal strip. As the hatchback goes out of vision, a cyclist enters the vision riding along York Place and then turns north from York Place into Owen Street. The cyclist goes out of vision approximately eight seconds after the hatchback goes out of vision. The hatchback appears to be identical to Mazda 354.

At 12.27 pm the recording from Owen Street camera 3 referred to at [54] above shows a small silver Mazda hatchback enter the vision, proceed north along Owen Street and stop on the western side. It shows the driver’s door open and a man alight from the driver’s seat of the vehicle. It shows the man start to run across the road and leave the vision. Parts of the man’s body and the vehicle are obscured by a tree. It is not possible to see if the man is carrying anything in his hands. The driver’s door remains open. The hatchback appears to be identical to Mazda 354.
Approximately nine seconds after the small silver hatchback enters the vision, a cyclist enters the vision and proceeds north along Owen Street. Approximately 12 seconds after the driver’s door of the small silver hatchback opens, the cyclist turns right from Owen Street into Thirteenth Avenue.
The small silver Mazda hatchback remains stationary with the driver’s door open for 20 seconds. The recording then shows a man enter the driver’s seat from across the road and close the driver’s door. Parts of the man’s body and the vehicle are obscured by a tree. The vehicle then drives off north along Owen Street and goes out of vision.
At 12.34 pm a recording from a CCTV camera on Romney Avenue Croydon Park (the Romney Ave camera) shows a small silver Mazda hatchback travelling south. The vision is in colour and of good quality. The front passenger door has a horizontal strip, which is absent on the rear passenger door. The hatchback appears to be identical to Mazda 354.
A screenshot of Google Maps showing routes to travel from 8 Owen Street to the Romney Avenue camera address shows two alternative routes (3.3 and 3.6 kilometres) taking six minutes and a third alternative route (3.0 kilometres) taking seven minutes.
Romney Avenue is a no through road with a dead end at its southern end. It stops just short of connecting to Regency Road to the south. The recording from the Romney Ave camera does not show the small silver Mazda hatchback return northwards after it passes the camera travelling south.
At 12.34 pm a phone call lasting 122 seconds was made by Mr Piening’s phone number to a phone number ending in 086 (the 086 phone number[13]). This is an agreed fact. In relation to this and subsequent calls between those two phone numbers, there is no evidence who made or received the call, as to their content or as to the ownership of the 086 phone.
[13] Full number redacted.
At 12.38 pm a phone call lasting 33 seconds was made by the 086 phone number to Suburban Taxis’ phone number. The call was made by a female caller requesting a taxi for 2 Nyonga Avenue for a customer named Robert. This is an agreed fact.
At 12.39 pm a phone call lasting 14 seconds was made by the 086 phone number to Mr Piening’s phone number. This is an agreed fact.
At 12.39 pm recordings derived from two CCTV cameras at separate addresses on Nyonga Avenue Croydon Park show a man walking south. Nyonga Avenue is on the other side of Regency Road from Romney Avenue. Nyonga Avenue has a junction with Regency Road and is more or less in the same alignment as Romney Avenue.
The vision in the first recording is in colour and of good quality. In this recording, only the lower half of the man’s body can be seen. He is wearing black shorts with white stripes down the side, black shoes and white ankle socks.
The second recording is of poorer quality because it is not the original CCTV footage but a recording of it is taken using a police officer’s mobile phone camera. The man is wearing black shorts with white stripes down the side, black shoes and white ankle socks. He is wearing a black singlet, is bald, and is holding a mobile phone to his ear using his left hand. He appears to be identical to the man seen in the Leslie Street recordings.
At 12.39 pm a phone call lasting 59 seconds was made by the 086 phone number to the Suburban Taxis phone number. The call was made by a female caller stating that Robert was now at the other end of Nyonga Avenue. This is an agreed fact.
At 12.40 pm a recording derived from a CCTV camera on Ena Street Croydon Park near its junction with Stevens Street shows a man walking west. The recording is of poorer quality because it is not the original CCTV footage but a recording of it taken using a police officer’s mobile phone camera. The man crosses the road from the north side to the south side and approaches Stevens Street. Nyonga Avenue has a junction with Ena Street. The man is wearing shorts and a singlet. He is bald and is holding a mobile phone to his ear using his right hand. He appears to be identical to the man seen in the Leslie Street recordings.
At 12.43 pm a recording from a CCTV camera on Stevens Street Croydon Park shows a man walking southwest along the street. The vision is in colour and of good quality. The man is wearing black shorts with white stripes down the side, black shoes and white ankle socks. He is wearing a black singlet, is bald and is holding a mobile phone in his right hand. He appears to be identical to the man seen in the Leslie Street recordings.
At 12.43 pm a phone call lasting 16 seconds was made by Mr Piening’s phone number to the 086 phone number. This is an agreed fact.
At 12.43 pm a phone call lasting 41 seconds was made by Suburban Taxis’ phone number to the 086 phone number. The call was made to a female, who said that Robert was now at the Challa Gardens Hotel. This is an agreed fact.
At 12.44 pm a phone call lasting 11 seconds was made by the 086 phone number to Mr Piening’s phone number. This is an agreed fact.
At 12.46 pm a recording from a CCTV camera on Torrens Road West Croydon not far from the junction of Stevens Street with Torrens Road shows a man walking slowly southeast along Torrens Road. The vision is in colour and of good quality. The man is wearing black shorts with white stripes down the side, black shoes and white ankle socks. He is wearing a black singlet, is bald and is holding a mobile phone to his ear using his left hand. He appears to be identical to the man seen in the Leslie Street recordings.
At 12.47 pm a recording from a CCTV camera on Torrens Road West Croydon at the Challa Gardens Hotel bottle shop shows a man buying a four pack of what appears to be mixer drinks. The man is wearing black shorts with white stripes down the side, black shoes and white ankle socks. He is wearing a black singlet, is bald and is holding a mobile phone.
A recording from a second CCTV camera at the bottle shop shows the man at the same time at a different angle. Distinctive tattoos are visible on both arms and his upper chest. A recording from a third CCTV camera at the bottle shop shows the man at the same time at a different angle. It shows the man pay with a banknote and receive change.
The vision in the recordings from the bottle shop is in colour and of good quality. The man seen in them appears to be identical to the man seen in the Leslie Street recordings.
At 12.48 pm a phone call lasting 17 seconds was made by Mr Piening’s phone number to the 086 phone number. At 12.49 pm a phone call lasting 67 seconds was made by the 086 phone number to the Suburban Taxis phone number. At 12.51 pm a phone call lasting 10 seconds was made by Mr Piening’s phone number to the 086 phone number. These are agreed facts.
At 12.51 pm two sms messages were sent by Cate’s phone number to Mr Piening’s phone number. These are agreed facts. There is no evidence who sent or received the messages or as to their content.
At 12.52 pm a phone call lasting 21 seconds was made by Mr Piening’s phone number to Cate’s phone number. This is an agreed fact. There is no evidence who made or received the call or as to its content.
At 12.52 pm a recording from a Suburban Taxi CCTV camera shows a man enter and sit in the back seat. He is initially holding a four pack of what appears to be mixer drinks in his right hand. He is also initially holding a mobile phone to his ear with his left hand. He is wearing black shorts, a black singlet, is bald and is wearing distinctive sunglasses. He appears to be identical to the man seen in the Leslie Street recordings. At 12.55 pm he pays in cash and alights from the taxi.
At 12.56 pm the Leslie Street camera recording shows a man alight from the rear of a Suburban taxi and walk in through the driveway towards the house. The man is wearing black shorts with white stripes down the side, black shoes and white ankle socks. He is wearing a black singlet, is bald, is wearing distinctive sunglasses and is holding a four pack of what appears to be mixer drinks. He appears to be identical to the man seen in the earlier Leslie Street recordings.
Subsequent events after that day
On 26 January 2021 the police arrested Mr Piening. Two photographs of the tattoos on his arms were taken. He was virtually bald.
On 27 January 2021 police attended at the premises of the Animal Welfare League at Edinburgh. They seized Mazda 354 from Mr Gerazounis. They took photographs of it. The photographs depict a horizontal strip on the passenger side front door and no horizontal strip on the passenger side rear door.
Prosecution and defence cases
The prosecution case is that Mr Piening was the assailant. The prosecution case on the identity of the assailant is entirely circumstantial.
Mr Vincent gave evidence that he recognised the assailant as Mr Piening. However, given that the assailant was wearing a face covering and, on his evidence, Mr Vincent had only previously met Mr Piening on a single occasion, the prosecution does not rely on his evidence as recognition evidence.
Mr Vincent and Mr Ferro each gave a description of the appearance of the assailant. The prosecution does not rely on their evidence as identification evidence. However, the prosecution does rely on their descriptions of the assailant as being, according to the prosecution, consistent with the appearance of Mr Piening on that day as a component of the prosecution’s circumstantial case on the issue of identity.
In broad terms, the elements of the prosecution circumstantial case are:
(a)Mr Piening is the person depicted in the Leslie Street recordings getting into, driving out in, driving away in, returning in, driving in and getting out of the small silver hatch;
(b)Mazda 354 was the small silver hatch seen in those recordings;
(c)the long blue bag seen in the small silver hatch seen in the Leslie Street recordings contained or may have contained a rifle being the assailant’s weapon;
(d)the phone call made by Cate’s phone number to Mr Piening’s phone number at 12.18 pm resulted in Mr Piening driving Mazda 354 to Owen Street;
(e)the small silver hatch seen in the Panmure Place, Glengyle Street, Stone Street and Owen Street recordings was Mazda 354 and was being driven by Mr Piening and this was a logical route to follow from the Leslie Street house to the Owen Street house;
(f)the small silver hatch stopped for 20 seconds to prepare the firearm and face covering for arrival at the Owen Street house;
(g)the clothing worn by the assailant as described by Mr Vincent was consistent with the clothing worn by Mr Piening as shown in the Leslie Street recordings;
(h)the appearance of the assailant as described by Mr Vincent and Mr Ferro was consistent with the appearance of Mr Piening as shown in the Leslie Street recordings and his 26 January 2021 custody photographs;
(i)the small silver hatch seen in the Romney Avenue CCTV recording was Mazda 354 and was being driven by Mr Piening;
(j)the person seen walking in the Nyonga Avenue, Ena Street, Stevens Street, Torrens Road, Challa Gardens Hotel, Suburban Taxi and 12.56 pm Leslie Street recordings was Mr Piening; and
(k)Mr Piening requested the female using the 086 phone number to make the bookings, and changes to the bookings, with Suburban Taxis, and to make them in the name of Robert, to disguise the fact that he was the subject of the booking.
The prosecution case on count 1 is that the bullet that penetrated Mr Vincent’s left leg was fired by the assailant as the assailant was walking across the road and was not discharged during the course of the struggle between Mr Vincent and the assailant. The prosecution case is circumstantial and proceeds on the basis that Mr Vincent was objectively but honestly mistaken in believing that the gun discharged during the course of the struggle and that the bullet penetrated his left leg as a result of that discharge.
The defence case on the identity of the assailant is that Mr Piening was not the assailant and more specifically that the prosecution has not proved beyond reasonable doubt that he was the assailant. Amongst other things, the defence submits that it is not beyond the realms of possibility that two persons were involved in the shootings and it could be that a second person entered Mazda 354 on the way from the Leslie Street house to the Owen Street house and that second person was the shooter.
The defence case on count 1 is that the prosecution has not proved beyond reasonable doubt that the bullet that penetrated Mr Vincent’s left leg was fired by the assailant as the assailant was walking across the road, and has not negated the reasonable possibility that it was fired during the course of the struggle between Mr Vincent and the assailant.
Witnesses: general
Leaving aside Mr Vincent, there is no real challenge to the honesty or general reliability of any of the witnesses called by the prosecution. I briefly summarise the evidence of those witnesses before addressing separately the evidence of Mr Vincent and the evidence of Nicolaas De Bruyn who was called by the defence.
Mr Ferro gave evidence that is summarised above. It is common ground that he is the cyclist depicted in the Owen Street recording. In any event I find that he is.
Mr Ferro gave the following description of the man with the rifle. The man was white; his age appeared to be in the 40s; he was of middle height and bulky build; and he was bald. The man was wearing a black face mask, which appeared to be like the surgical or COVID mask that people are wearing these days. The mask covered the man’s face but not his bald head and was not a balaclava as Mr Ferro understands a balaclava to be. The man was wearing a short-sleeved black T-shirt.
Mr Alizadeh gave evidence that is summarised above. He did not describe the person holding the gun other than that he was male. He described the car on the other side of the road as being a green sedan. He described the silver car as driving away quick.
Mr Cummings gave evidence that is summarised above. His evidence was given in the form of the tender of his witness affidavit and he did not give oral evidence. He described the male who walked across the road to the silver hatchback as wearing a black hooded jumper with the hood done up and pants. He described the hatchback as taking off at normal speed. After the hatchback departed, he heard yelling and saw an Aboriginal male pulling himself backwards along the ground. He was being assisted by another person. The Aboriginal male appeared to be heading towards a green hatchback parked on the curb out the front of the address.
Mr Coulthard gave evidence that is summarised above.
Detective Brevet Sergeant Goud gave evidence that is summarised above.
Detective Hintz gave evidence that is summarised above. She was the chief investigating officer in relation to the shooting of Mr Vincent. She said that, upon her arrival at the Owen Street house, a search was conducted of the house. Drugs and drug paraphernalia were located. Drugs and a large amount of cash were located on Cate. A mobile phone was located in a pot plant at the Owen Street house, which phone belonged to Mr Vincent. The hard drive of the CCTV at the Owen Street house had been smashed to pieces.
Detective Hintz said that items inside Mazda 354 and parts of Mazda 354 were swabbed for DNA and checked for fingerprints but Mr Piening’s DNA or fingerprints were not located.
Detective Brevet Sergeants Quinn and Woodhouse gave evidence that they attended at the Royal Adelaide Hospital on 23 January 2021 and visited Mr Vincent. They were unable to have a conversation with him because he was only semi-conscious, groggy and incoherent.
Detectives Quinn and Woodhouse returned the following evening. Detective Quinn gave evidence that they tried to speak to Mr Vincent about the events that led him to be in hospital but it was hard to get a proper back-and-forth conversation going because he was still in and out of consciousness. His speech was slurred. Detective Quinn asked him about what happened. He stated that he did not see anything. He did not see the vehicle or the person involved. He said that he had gone to the address to scheme drugs. This conversation took five minutes because he was falling back asleep throughout this time. Detective Woodhouse described Mr Vincent’s condition on that evening as out of it and not very coherent.
Brevet Sergeant Tobiasen gave evidence about the 30 calibre cartridge that he located in the green Falcon sedan at the Queen Elizabeth Hospital. He said that predominantly it is a military style cartridge usually fired from an M1 carbine self-loading centrefire rifle or other brands and models of the same style of firearm (which have magazines). It is also used in some self-loading and single shot handguns.
Detective Brevet Sergeant Schar gave evidence that he compiled the CCTV recordings, still images taken from those recordings and maps showing the location and field of view of the cameras that made those recordings tendered to the Court. He also produced photographs taken on 15 February 2013 of the inner and outer sides of Mr Piening’s right calf. He gave evidence that he watched the longer recordings from which the CCTV recordings that were tendered were derived and no man got in or out of the silver hatchback at the Leslie Street house on the morning of 21 January 2021 other than the man depicted in the tendered recordings. He gave evidence that the silver hatchback did not emerge from Romney Avenue over the next two hours after it was seen in the CCTV recordings at 12.34 pm.
Brevet Sergeant Brooks gave evidence of observations that he made at the Owen Street house and expressed opinions concerning bullet trajectories. I address his evidence in detail below.
Witness: Mr Vincent
The defence makes extensive submissions concerning the honesty and reliability of Mr Vincent’s evidence. The defence invites me to find that Mr Vincent was neither an honest nor a reliable witness. I address most, but not all, of the defence submissions on this topic. However, I have taken all of them into account in assessing the honesty and reliability of Mr Vincent’s evidence.
Although the prosecution in opening address foreshadowed relying on Mr Vincent’s evidence as recognition evidence, in closing address it eschewed any such reliance. Given that the prosecution ultimately relies on the issue of identity solely on circumstantial evidence and the evidence of Mr Vincent relied on is relatively limited, credit issues in relation to Mr Vincent’s evidence are less important than at the time of the prosecution’s opening address.
The statutory declaration
The topic of the statutory declaration referred to below was introduced in cross-examination.
Evidence was not adduced as to how the defence lawyers obtained the statutory declaration.
Mr Vincent’s evidence was that he has always believed that the assailant was Mr Piening. As noted above, I disregard this evidence as having any probative value (as recognition evidence) because the prosecution eschews any such reliance. However, the evidence is relevant to credit because on 21 May 2021 Mr Vincent made a statutory declaration before Mr De Bruyn.
The statutory declaration was in Mr Vincent’s handwriting and stated, after the printed words “I do solemnly and sincerely declare that”:
of my own free will under no distress to providing further information in regards to the shooting at Woodville North on Owen Street 20th January 2021 where I was the victim. I have considered the events transpired and thought own recollection. I know now the person who I believed that shot me is not the man currently charged I state that David Piening is not the man that shot me and I will testify to this in a court of law I rescind all previous statements as this is a true account what I remember and know over who was involved

The original statutory declaration was produced by defence counsel to Mr Vincent in cross-examination and tendered by the defence. Mr Vincent said that he signed the statutory declaration before a justice of the peace at the Adelaide Magistrates Court. He said that he was driven to the Court by a man whose name he could not recall at the time of giving evidence. That man told him the words to write in the statutory declaration. Mr Vincent wrote out the words in the statutory declaration based on what the man told him to write.
Mr Vincent said that the man told Mr Vincent that he would be paid $20,000 in cash if he signed the statutory declaration. The man waited outside while Mr Vincent signed the statutory declaration. Mr Vincent gave the statutory declaration to the man after he signed it and came out. However, the man simply took the document and left without paying him any money.
The defence contends that there were inconsistencies between Mr Vincent’s evidence and Mr De Bruyn’s evidence. Mr De Bruyn is a justice of the peace who attends at the Adelaide Magistrates Court for four hours every Friday on a voluntary basis to witness the execution of various types of documents. They include bail agreements, bonds, affidavits and statutory declarations. On a typical Friday he witnesses the execution of about a dozen bail agreements and bonds and about half a dozen affidavits and statutory declarations. He gave his evidence partly by reference to his recollection of witnessing Mr Vincent’s statutory declaration on 21 May 2021 and partly by reference to his usual practice.
Mr De Bruyn gave evidence that the JPs use a room off the foyer on the ground floor (the JPs office). He recalled Mr Vincent coming into the JPs office, saying that he needed a statutory declaration, giving Mr Vincent a blank statutory declaration form and asking him to go out of the JP’s office, fill it in, and return when completed.
Mr De Bruyn said that later on Mr Vincent came back into the JPs office. Mr De Bruyn had Mr Vincent execute the document and Mr De Bruyn witnessed it. Mr De Bruyn described his standard practice for execution, including standard questions whether the statement is true and correct. He said that no one else was present in the JPs office apart from Mr Vincent and himself and he did not notice anyone outside who was obviously associated with Mr Vincent.
Mr Vincent gave evidence that he attended at the Adelaide Magistrates Court with his sister and brother-in-law, although they had arrived in different cars. It was put to him in cross-examination that there was no one else in the room other than himself and the justice of the peace and Mr Vincent said no. He said that his sister and brother-in-law were also there. He was asked to confirm that according to his memory they were both in the room and he said yes. In re-examination, Mr Vincent said that his sister and brother-in-law and the man whose name he could not remember were present outside the JPs office when he wrote out the words on the statutory declaration.
There is an inconsistency between Mr Vincent’s evidence and Mr De Bruyn’s evidence. I find that Mr Vincent’s sister and brother-in-law did not actually go into the JPs office when Mr Vincent signed the statutory declaration. However, I do not consider that this adversely affects Mr Vincent’s credit. Whether or not his sister and brother-in-law were physically inside the JPs office when he signed the statutory declaration is of no significance: the significance is that they were present outside the office when Mr Vincent was writing out the statutory declaration. Mr Vincent was simply mistaken in believing that they had gone into the JPs office. On the other hand, Mr De Bruyn was in no position to know whether or not any persons were present when Mr Vincent was writing out the statutory declaration. Indeed, he did not say that he saw Mr Vincent writing out the statutory declaration or that he would have taken any interest in the circumstances in which he did so.
The defence submits that there is an inconsistency between Mr De Bruyn’s evidence that he gave a blank statutory declaration form to Mr Vincent, who went away and returned with it completed, and evidence given by Mr Vincent in cross-examination. The relevant passage in cross-examination is as follows:
Q.… firstly when you went in there this document had already been written out by you,     hadn't it.
A.    No.
Q.    It hadn't.
A.    No.
Q.Was this document written out while you were with the JP or before going to see the JP.
A.    Before.
This passage is not inconsistent with Mr De Bruyn’s evidence. When Mr Vincent was asked the first question, it is natural that he would have understood the reference to “when you went in there” being to going to the Adelaide Magistrates Court. By contrast, when he was asked the third question, it is natural that he would have understood the reference to “while you were with the JP” being to when he executed the statutory declaration in the JPs office because there had been no reference earlier in his evidence to going into the JPs office earlier to be given a blank statutory declaration. In addition, during re-examination, Mr Vincent confirmed that his evidence was that the man whose name he could not remember drove him to the Court, he then wrote out the statutory declaration and he then went into the room with the JP and signed it in the room.
The defence submits that there are internal inconsistencies in Mr Vincent’s evidence about the statutory declaration. I reject those submissions. Mr Vincent was asked in cross-examination before any reference was made to a statutory declaration where he was on 21 May 2021 and he said at Hampstead. He was asked whether he recalled going to the Adelaide Magistrates Court on that date and he said no.
Mr Vincent was then asked if he recalled meeting a justice of the peace at the Adelaide Magistrates Court on 21 May 2021 and he said yes. This evidence is consistent. Mr Vincent may well have been at Hampstead on 21 May 2021. He would naturally have understood the question about going to the Adelaide Magistrates Court as referring to an appearance as a party in court. When asked if he recalled meeting a justice of the peace, he readily agreed.
Mr Vincent was asked in cross-examination if he recalled filling out the statutory declaration form and he said “I didn’t actually the write words but”. When asked if it was his handwriting on the statutory declaration, he said that it was. These answers are consistent. Mr Vincent made it clear that, while it was his handwriting, it was not his words and the words were given to him by the man whose name he did not recall.
The defence submits that Mr Vincent was evasive as to whether he signed the statutory declaration. When it was put to him that it was his signature that appeared on the statutory declaration, he initially said “I can’t remember”. The next question asked him to look at the signature and say whether it was his signature and he said that it was. I do not regard this evidence as evasive. It may well be that Mr Vincent did not actually recall, as he sat in the witness box, signing the statutory declaration but he accepted that it was his signature.
Mr Vincent said that the words in the statutory declaration were what they wanted him to write. He was asked in cross-examination who “they” was and he referred, amongst others, to “the guy that took me down there”. In re-examination, he was asked whether the person who told him that he would get $20,000 cash for writing the document was there at the Magistrates Court when he signed it and he said no. These answers are consistent. The question in re-examination was directed to the presence of the man when Mr Vincent signed the statutory declaration in the JPs office; whereas Mr Vincent’s cross-examination was about the man drove him to the Magistrates Court. This is confirmed by Mr Vincent’s evidence during re-examination that the man was present when he wrote out the statutory declaration.
When asked who “they” was as referred to in the previous paragraph, Mr Vincent referred amongst others, to Mr Piening and his brother. He later said that he had had no contact with Mr Piening at that time and said that Mr Piening did not ever ask him to do it. This is not inconsistent because Mr Vincent added during his answer that Mr Piening asked other people to do it. Similarly, in cross-examination he said that Mr Piening’s brother asked him to do it and in re-examination said that he had a conversation with Mr Piening’s brother about the statutory declaration after he signed it.
The defence submits that Mr Vincent said that the person who said what they wanted him to say in the statutory declaration was not at the Adelaide Magistrates Court on the day he signed the document. That was not Mr Vincent’s evidence. The relevant passage is as follows:
Q.The person who offered you the or told you you would get $20,000 cash in hand for   writing this document …    - were they there on the day at the Magistrates Court when you signed it.
A.    No.
HIS HONOUR
Q.    What about when you wrote it out, were they there when you wrote out these words.
…
A.There was my sister, Travis, and the person that I'm trying to remember who asked me - whose words were it. Definitely not my words, I wouldn't be able to think of something like that.
The answer to the first question was that the person was not present when Mr Vincent signed the statutory declaration. On his evidence, that was done in the JPs room. However, his evidence was clear that the person was present at the Adelaide Magistrates Court on that day and in particular was present when he wrote out the words.
The defence points to the fact that Mr Vincent agreed in cross-examination that he did not include reference to the statutory declaration in any written statement that he made to the police about the matter. The fact that it was not referred to in any written statement prepared by the police does not tend to prove that its contents were true.
On the hypothesis that Mr Vincent had come to realise that his earlier belief that the assailant was Mr Piening was erroneous, both the nature and content of the statutory declaration are curious and not what would naturally be expected. First, it may be expected that he would simply have gone to the police and told them this given that he had previously provided signed statements to them (to which he referred in the statutory declaration) but he did not do so. Secondly, even if he decided to provide the information to the police by way of a statutory declaration, it may be expected that he would have given the statutory declaration to the police but he did not do so. Thirdly, the statutory declaration does not explain why he no longer believed that Mr Piening was the assailant. Fourthly, the statutory declaration is devoid of any other detail apart from a bare statement that Mr Piening was not the assailant.
I accept Mr Vincent’s evidence that he continued to believe that the assailant was Mr Piening on 21 May 2021 when he signed the statutory declaration. It follows that he knowingly signed a false statutory declaration, which is a serious dishonest act. This necessarily affects my assessment of his credit. However, as juries are daily instructed, it is possible to find that a witness is lying about one matter and telling the truth about other matters.
Finally, before leaving the statutory declaration and for the avoidance of doubt, I draw no adverse inference against Mr Piening by reason of Mr Vincent’s evidence that he believed that Mr Piening indirectly procured the statutory declaration. This is merely Mr Vincent’s belief and, as the defence submits, there is no evidence that Mr Piening had any involvement in or knowledge of the obtaining of the statutory declaration. I proceed on the basis that he did not. The prosecution does not submit otherwise.
Allan incidents
The next topic is Mr Vincent’s evidence about his dealings with Allan. This topic was introduced in cross-examination.
Ultimately Mr Vincent’s evidence was as follows.
Mr Vincent first met Allan at the house of Jerry Palmos at Pennington (the Pennington house). Mr Vincent asked Allan to come to Mr Vincent’s unit at Semaphore Park (the Semaphore Park unit). When Allan arrived, Mr Vincent stole two half balls of methylamphetamine from Allan. He slapped Allan, demanded that he strip out of his clothes, and stole about $2,600 that was sitting inside his underwear. Mr Vincent’s recollection was that this was about six months before January 2021 [that is mid 2020].
Subsequently Allan made threats to Mr Vincent by phone and via Facebook. Mr Vincent made threats back to Allan. Mr Gerazounis also made threats to Mr Vincent. During a video call on Facebook, Allan taunted Mr Vincent to come and take his money off him and his drugs. Allan also sent to Mr Vincent a photograph of a large amount of cash.
Subsequently, Mr Vincent went to the Owen Street house. Mr Vincent walked through the door and took a ball of methylamphetamine and $500 in cash that was sitting on the table and belonged to Allan. Mr Vincent showed Allan his drugs and his money that Mr Vincent had taken.
The defence contends that there were several inconsistencies in Mr Vincent’s evidence. Most of the apparent inconsistencies arose as a result of it not being clear to defence counsel at the outset of cross-examination on this topic that there were two separate occasions when Mr Vincent took drugs and money from Allan. Defence counsel and Mr Vincent were at cross purposes in that defence counsel was often asking about one occasion and Mr Vincent was understanding him to be asking about another occasion. For example, there was apparent confusion as to whether Mr Vincent was accompanied by Matthew Hawley or by Digger and Travis. This was because the cross examiner was proceeding on the assumption that there was only one occasion when in fact there were two and Mr Vincent was accompanied by Mr Hawley on one occasion and by Digger and Travis on the other.
The defence submits that initially Mr Vincent said that he took the two half balls of methylamphetamine and $2,600 from Allan at the Pennington house but he later said that he took it at the Semaphore Park unit. My understanding based on the whole of Mr Vincent’s evidence is that in his initial evidence he was not saying that the actual stealing occurred at the Pennington house but that he first went to the Pennington house and then Allan came to the Semaphore Park unit (where the actual stealing occurred). In any event, if Mr Vincent was saying in his initial evidence that he believed that the stealing occurred at the Pennington house, the important fact is the stealing, rather than precisely where it occurred and his initial mistake does not cause me to consider that his evidence is not generally reliable (leaving aside specific details such as the place at which and date on which events occurred).
Initially during cross-examination, Mr Vincent said that he had first met Allan a couple of weeks before going to the Pennington house. Later, after being shown a statement made to the police in which he said that he first met Allan at the Pennington house, he agreed that he was mistaken in his earlier recollection. This is the sort of detail about which an honest and reliable witness may be mistaken and does not cause me to consider that his evidence is not generally reliable.
The defence submits that Mr Vincent’s evidence about being invited by Allan to come and take his money and drugs does not make sense. This was not put to Mr Vincent and the tone of the cross-examination was to suggest that this did occur, and Allan was taunting Mr Vincent, with which Mr Vincent agreed. It was explicitly put to Mr Vincent in cross-examination that Allan did make threats to him. It is perfectly understandable that Allan sent a message as described taunting Mr Vincent.
Mr Vincent was asked in cross-examination whether he had provided the video call or any evidence about it to Detective Hintz and he said no, she had not asked for it. He was invited to now produce it to Detective Hintz and he said that he should be able to do so. There were no further questions on that topic. However, when Detective Hintz came to give evidence towards the end of the prosecution case, she said that Mr Vincent told her that he believed that he had been blocked by Allan on Facebook which meant that he could not access any previous messages with him. She also said that Mr Vincent gave her a username and password for his Facebook account but the password was incorrect. The defence submits that Mr Vincent was being evasive in relation to the password that he provided to Detective Hintz. I note that this was not put to him in cross-examination. In any event, I have no basis to consider that Mr Vincent was being evasive.
Mr Vincent was asked in cross-examination for Travis’ surname and he said that he did not know it. The defence submits that he was being evasive. I have no basis to find that Mr Vincent knew Travis’ surname.
Semaphore Park incident
The next topic is Mr Vincent’s evidence concerning an incident that he said occurred at the Semaphore Park unit.
In evidence in chief, Mr Vincent was asked when he first saw David Piening, where did that occur. He said that this was at Semaphore Park. He gave evidence that, while he was at Alberton, he received a phone call from Mr Gerazounis. He drove straight home from Alberton. He pulled up to unlock his back gate. He got out of the car, picking up a battery-powered circular saw off the floor of his car. Mr Gerazounis and another man walked towards him.
Mr Vincent said that the other man asked Mr Vincent if he remembered him. Mr Vincent replied no. The other man said “I heard you been talking shit about me”. Mr Vincent replied “I don't even know you”. The other man said that his name was David Piening. Mr Vincent told him to ‘f off’ and get off his property.
Mr Vincent said that the two men kept walking towards him. Mr Vincent tried to unlock the back gate with his key but it would not unlock. He backed away into an alleyway behind him. After a bit, Mr Gerazounis and the other man turned to walk away. At that point, the other man said that the next time he saw Mr Vincent, he would have “one of these”, making a gun cocking motion with his index and middle finger and with his thumb extended.
In evidence in chief, Mr Vincent was asked whether this incident was the first time that he ever laid eyes on the man with Mr Gerazounis. He said that he had seen him in gaol but had never really known him. Asked which gaol, he said Yatala. Asked how many times, he said that he could not remember “maybe, you know, see a person you know, maybe often, once or twice, I don't know”. Asked when this was, he said a few years previously.
There was then the following exchange:
Q.But at the time, when he first arrived at Semaphore Park, whilst, as you say, you don't know him sort of personally, did you recognise him when you saw him.
A.    Yeah, he looked familiar, yes.
Q.    Did you recognise him as the person you'd seen in Yatala.
A.    No. Yeah. Afterwards.
The defence submits that Mr Vincent’s evidence that it was at Semaphore Park that he first saw David Piening was incorrect because he later said that he had seen him at gaol. This is not inconsistent because it is apparent that Mr Vincent understood the initial question as relating to his first interaction with Mr Piening as opposed to merely seeing him from a distance.
The defence submits that Mr Vincent’s answer to the question whether he recognised the man as the person he had seen in Yatala “No. Yeah. Afterwards” is nonsensical and inconsistent with his other evidence. This answer makes sense and is consistent with Mr Vincent’s other evidence. At the time, the man merely looked familiar to him but he did not place him as someone he had seen in gaol until afterwards. As he had never spoken to or interacted with the man at Yatala, the previous sighting or sightings were insignificant.

Brevet Sergeant Brooks said that, in addition to the perforation in the sheet-metal, the cyclone wire at the rear of the gate was bent inwards.
Brevet Sergeant Brooks observed a mark on the concrete driveway inside the front boundary of the property and almost halfway from the centre to the left hand side of the left-hand front gate if it were closed (the ricochet mark). Evidence was not adduced as to the distance of the mark from the front boundary of the property or from the point where the two gates meet. Brevet Sergeant Brooks expressed the opinion that the mark was a ricochet caused by a projectile twisting from right to left.
Brevet Sergeant Brooks erected a string line commencing at the ricochet mark and proceeding through the gate perforation to a tripod erected in the vicinity of the gutter. The height of the string above ground at the tripod was 1.75 metres and he expressed the opinion that anything higher than that would be an awkward shooting position. The tripod was approximately 6 metres from the perforation in the fence. He said that a projectile passing through sheet metal, such as the sheet metal of the gate, would result in a slight deflection of between 0.5 and 1.5 degrees
Brevet Sergeant Brooks did not locate any projectiles at the property.
Brevet Sergeant Brooks also located a perforation in the ridged sheet metal of the side boundary fence just above the bottom wooden rail consistent with having been caused by the bullet that passed through Mr Vincent’s right leg. He used a metal detector to attempt to locate a bullet underneath the ground but that was unsuccessful.
In cross-examination, Brevet Sergeant Brooks said that, when a bullet hits concrete, it can fragment into multiple pieces. He said that passing through a human body can cause tumbling of a bullet depends on the part of the body that it hits. Passing through bone would cause tumbling. He said that, if a firearm had an unrifled barrel, the bullet would come out of the barrel very unstable before getting its path. Brevet Sergeant Brooks was asked, if the barrel of the firearm was sawn off, whether it could make the bullet unstable. He said that there were a lot of variables involved, whether the rifling was in good condition and whether the calibre was correct for the firearm.
Analysis
If Mr Vincent’s evidence is disregarded, the evidence given by Brevet Sergeant Brooks is consistent with the bullet that penetrated Mr Vincent’s left leg having been fired as the assailant crossed onto the footpath. The trajectory of the bullet posited by Brevet Sergeant Brooks is consistent with this hypothesis. However, the question is not whether the evidence is consistent with the prosecution hypothesis but whether it compels acceptance of that hypothesis beyond reasonable doubt.
Mr Vincent gave evidence that the two shots fired by the assailant as the assailant was walking towards him did not come into contact with him. The prosecution accepts that this is and was Mr Vincent’s genuine belief but contends that he was mistaken.
Mr Vincent gave evidence that the firearm discharged during the course of the struggle. He did not feel anything go through his left leg at that point. He thought that the bullet had hit the ground. However, shortly after that, he believed that the bullet had gone through his left leg. The prosecution accepts that this is and was Mr Vincent’s genuine belief but contends that he was mistaken.
Mr Vincent did not feel the bullet go through his right leg at the time. Hence, his lack of feeling a bullet go through his left leg at any point (as the assailant approached him or during the struggle) is perhaps neutral. Mr Vincent did not notice that his left leg was bleeding until after he had fallen against the inside of the gate.
Mr Vincent gave evidence that, during the struggle, the barrel of the rifle was pointing down.
The prosecution contends that the evidence is inconsistent with the wound to Mr Vincent’s left leg having been caused during the struggle. First, it contends that, if the rifle was pointing downwards, that is inconsistent with the more or less horizontal path of the bullet through Mr Vincent’s left leg. Secondly, it contends that, if the rifle was pointing downwards, a ricochet mark would have been discovered by Brevet Sergeant Brooks.
The prosecution concedes that, although the evidence established that tumbling of the bullet could be caused by passing through the human body, it did not negate that the bullet might have been tumbling for other reasons. The prosecution’s contention is limited to the fact that the evidence is that the bullet was tumbling and having passed through Mr Vincent’s leg is one of the explanations, but the tumbling does not prove that it went through his leg.
Brevet Sergeant Brooks did not say that passing through the human body will always cause a bullet to tumble. He said that hitting bone would do so. However, there is no evidence that the bullet that passed through Mr Vincent’s left leg hit bone. By contrast, the bullet that passed through his right leg fractured two bones and I am left with the impression that there is no indication that the bullet that passed through his left leg hit bone.
Brevet Sergeant Brooks did not express any opinion whether, if the firearm had discharged in the manner described by Mr Vincent, it would necessarily have caused a ricochet mark. For example, he did give evidence that bullets can fragment upon impact with concrete but did not say what affect fragmentation would have on leaving a mark. Based on the photographs tendered, the concrete in the vicinity of the gates is not uniformly flat but includes, for example, expansion joints and a groove apparently caused by scraping as the gate was opened. No evidence was adduced as to whether finding a mark in a joint or groove would be difficult.
In addition, assuming that the gate perforation and the ricochet mark on the concrete were caused by the third shot, no evidence was found of the path of the second shot. Moreover, the evidence that was adduced does not eliminate the reasonable possibility that the ricochet mark was caused by discharge of the firearm during the struggle and not by the shot that passed through the right-hand gate, with that bullet ending up elsewhere.
Although Mr Vincent in his evidence described the barrel as pointing down, he did not say that it was at 90 degrees to the ground. Nor did he say that his left leg was at 90 degrees to the ground during the struggle or at the point at which he perceived that the firearm discharged. He was engaged in a struggle potentially for his life and it would have been difficult for any witness in his position to have had a precise knowledge or recollection of the angle of the firearm and the angle of his left leg at the point of discharge.
The photographs of Mr Vincent’s left leg taken by Dr Dawson show one bullet wound distinctly higher than the other bullet wound. No evidence was adduced of the angle of the path of the bullet through his leg compared to horizontal. If the higher bullet wound is the entrance wound (which the prosecution cannot negate), there is a high degree of uncertainty as to the angle of the firearm, the angle of Mr Vincent’s left leg and the angle of the wound such that it is impossible for me to be satisfied beyond reasonable doubt that the angle of the wound is inconsistent with Mr Vincent’s evidence.
Although Mr Vincent was engaged in a struggle potentially for his life, making it difficult for him to be precise about angles, it is inherently unlikely that he perceived that the firearm discharged during the course of the struggle when it did not.
Although a matter of limited significance, if Mr Vincent had already been shot in the left leg before the struggle, it might perhaps be expected that he would have been impaired during the struggle. By contrast, immediately after the struggle, he fell back against the gate, which tends to suggest that his leg was injured during the struggle.
Considering all the relevant circumstances, I am not satisfied that the prosecution has proved beyond reasonable doubt that the wound to Mr Vincent’s left leg was caused by the assailant shooting the firearm as he was walking towards Mr Vincent, rather than the firearm discharging during the course of the struggle. The prosecution concedes that, if there is a reasonable possibility that the wound was caused by the firearm discharging during the course of the struggle, it cannot prove the element of the offence that the assailant’s action was voluntary or that the assailant intended to cause serious bodily harm.
It follows that Mr Piening must be found not guilty of count 1.
Identity
As noted above, the prosecution case on the issue of identity is a circumstantial one.
The principal items of evidence relied on by the prosecution in its circumstantial case are:
(a) the Leslie Street recordings depicting a man getting into, driving out in, driving away in, returning in, driving in and getting out of a small silver hatch, that man being identical to Mr Piening and the hatch being Mazda 354;
(b) the Leslie Street recordings depicting the man leaving at 12.23 pm carrying a long blue bag and placing it in the small silver hatch, the bag being capable of containing a rifle;
(c) the agreed fact that a phone call was made by Cate’s phone number (Cate being present at the Owen Street house and the call being made after Mr Vincent’s arrival at the house) to Mr Piening’s phone number at 12.18 pm coupled with the fact that Mr Piening entered Mazda 354 to drive away at 12.23 pm;
(d) the Panmure Place, Glengyle Street, Stone Street and Owen Street recordings depicting a small silver hatch being Mazda 354;
(e)Mazda 354 stopping for 20 seconds giving an opportunity to prepare the firearm and face covering for arrival at the Owen Street house;
(f) the appearance of the assailant as described by Mr Ferro, which was consistent with the appearance of Mr Piening as shown in the Leslie Street recordings and his 26 January 2021 custody photographs;
(g) the clothing worn by the assailant as described by Mr Vincent, which was consistent with the clothing worn by Mr Piening as shown in the Leslie Street recordings;
(h) the Romney Avenue recording depicting a small silver hatch, that hatch being Mazda 354;
(i) the Nyonga Avenue, Ena Street, Stevens Street, Torrens Road, Challa Gardens Hotel, Suburban Taxi and 12.56 pm Leslie Street recordings depicting a man, that man being Mr Piening;
(j) the phone calls between Mr Piening’s phone number and the 086 phone number and between the 086 phone number and Suburban Taxis and making of bookings, and changes of bookings, by the female caller in the name of Robert.
The defence conceded in cross-examination of Brevet Sergeant Schar and concedes in closing address that the man in the black singlet depicted in the Leslie Street recordings is Mr Piening. The defence concedes in closing address that the man in the long-sleeved top seen leaving the Leslie Street house is Mr Piening. I am in any event satisfied that the man in the singlet and the man in the long sleeve top is Mr Piening. He and his tattoos are recognisable from his photographs taken on 26 January 2021. He is the only male of the approximate age of the male seen in the recordings living in the house (by reference to the agreed facts).
The defence concedes in closing address that the man in the black singlet, shorts and shoes seen walking in the Nyonga Avenue, Ena Street, Stevens Street, Torrens Road and Challa Gardens Hotel recordings is Mr Piening. I am in any event satisfied that the man is Mr Piening. He and his tattoos are recognisable from his photographs taken on 26 January 2021. I am also satisfied that the man seen in the Suburban taxi is Mr Piening. Again, he is clearly recognisable, and he is seen in the Leslie Street recording emerging from a Suburban taxi.
I am satisfied that the small silver hatch seen in the Romney Avenue recording is Mazda 354. A Mazda badge is visible on the rear of the vehicle. The front passenger door has a horizontal strip, which is absent on the rear passenger door. The position of Mazda 354 on Romney Avenue is consistent with Mr Piening alighting from the vehicle, crossing Regency Road and then walking along Nyonga Avenue as shown in the Nyonga Avenue recording.
I am satisfied that the small silver hatch seen in the Leslie Street recordings is Mazda 354. It is an agreed fact that at the relevant time Mr Piening was one of the people to whom Mr Gerazounis lent Mazda 354. The number plate of the small silver hatch can be partially seen in some of the Leslie Street recordings, such that the last three numbers can be seen to be 354 and, although the letters cannot be unequivocally discerned, they are consistent with being the first three letters of the registration number of Mazda 354. Although the number plate cannot be seen in the recording at 11.34 am when the small silver hatch is parked in the street or at 12.24 pm when it is driven away, the appearance of that vehicle is identical to the appearance of Mazda 354 seen earlier, the Mazda badge can be seen at the rear of the vehicle when it is driven away at 12.24 pm and the front passenger door has a horizontal strip which is absent on the rear passenger door.
The Panmure Place, Glengyle Street and Stone Street recordings depict a small silver hatch that has the same appearance in each recording and the same appearance as Mazda 354 seen in the Leslie Street recordings. The Glengyle Street and Stone Street recordings show that the front passenger door has a horizontal strip which is absent on the rear passenger door. The Stone Street recording shows the last three alphanumeric characters as 354 on the rear number plate. I am satisfied that the small silver hatch seen in the Panmure Place, Glengyle Street and Stone Street recordings is Mazda 354.
The Owen Street recordings depict a small silver hatch. The passenger side and number plates are not visible. However, the hatch appears identical to Mazda 354 seen in the Stone Street recording. In addition, it enters the field of view of the first Owen Street camera at 12.27.04 pm and left the field of view of the Stone Street camera at 12.26.29 pm. The gap is consistent with it travelling on Stone Street, Caskey Street, Edgecombe Street and into Bond Street, being the most direct route from the location of the Stone Street camera to the location of the Owen Street camera. The defence does not suggest that the small silver hatch seen in the Owen Street recordings might not be Mazda 354 as seen in the Stone Street recording and I consider such a possibility to be fanciful. I am satisfied that the small silver hatch seen in the Owen Street recordings is Mazda 354.
I am satisfied that the long blue bag seen in the Leslie Street recording at 12.23 pm is capable of containing a rifle. There is of course no direct evidence as to the contents of the long blue bag.
It is an agreed fact that a phone call was made by Cate’s phone number to Mr Piening’s phone number at 12.18 pm. There is no direct evidence as to who made or received this phone call or as to its content. However, it is a fact that Mr Piening entered Mazda 354 to drive away at 12.23 pm, being five minutes after that phone call was made. Mazda 354 subsequently drove along Torrens Road, Sheridan Street and Stone Street along a route consistent with travelling to the Owen Street house.
It is an agreed fact that at 12.51 pm two sms messages were sent by Cate’s phone number to Mr Piening’s phone number and at 12.52 pm a phone call lasting 21 seconds was made by Mr Piening’s phone number to Cate’s phone number. There is no evidence who made or received the messages or call or as to their content. However, they were sent and made after some time had elapsed since the shooting.
Mr Ferro described the assailant as white, in his 40s, of middle height, of bulky build and being bald. This is consistent with the appearance of Mr Piening as seen in the various recordings. It does not of course uniquely describe Mr Piening and there would be other men living in the Adelaide metropolitan area meeting that description.
The Suburban taxi that drove Mr Piening from the Challa Gardens Hotel to the Leslie Street house was not booked by Mr Piening and was not booked in his name. It was booked by a female using the 086 number and it was booked in the name “Robert”. There might be many reasons why a person would ask someone else to book a taxi for them or for a taxi to be booked in a name other than that of the passenger. However, booking indirectly in a different name is consistent with a desire not to be identified as the passenger.
Mr Vincent described the top worn by the assailant in evidence in chief as “a long-sleeved top”. In cross-examination, when asked if the assailant was wearing a jumper, he described the long-sleeved as a T-shirt and, when asked its colour, he said that it “would have been light blue”. This description is consistent with the top worn by Mr Piening shown in the Leslie Street recording at 12.23 pm (the colour of which can be and was described as blue or grey).
Mr Cummings described the assailant as wearing a “black hooded jumper”. This is consistent with Mr Vincent’s description insofar as a jumper is a long-sleeved garment. The colour described by Mr Cummings is different to the colour describe as to Vincent. However, as Mr Cummings was approximately 200 metres away and the top seen in the Leslie Street recording can be described as grey, Mr Cummings could well have described it as black.
Mr Ferro described the top worn by the assailant as a short-sleeved black T-shirt. Both Mr Vincent and Mr Cummings described a long sleeve garment. Between Mr Vincent and Mr Ferro, Mr Vincent was much closer to the assailant and saw him for longer. I am satisfied that the assailant was wearing a long-sleeved top with a hood. This matches what Mr Piening was wearing when he left the Leslie Street house at 12.24 pm.
Mr Vincent described the assailant as wearing shorts. Mr Cummings described the assailant as wearing pants without describing what he meant by pants. Mr Vincent was much closer than Mr Cummings to the assailant. In addition, from viewing the Owen Street recording, it can be discerned from the contrast of light skin and dark clothing that the driver of the silver hatch is wearing dark shorts. I am satisfied that the assailant was wearing dark shorts. This matches what Mr Piening was wearing when he left the Leslie Street house at 12.24 pm.
The prosecution circumstantial case ultimately relies on the improbability of the combination of all of the matters referred to above occurring without Mr Piening being the assailant in proving beyond reasonable doubt that Mr Piening was the assailant. The fact that any one of the above matters, considered in isolation, is consistent with Mr Piening not being the assailant is not determinative. It is necessary to weigh the combined force of all of the relevant matters.
I have regard to Mr Piening’s phone receiving a phone call from a phone number belonging to an occupant of the Owen Street house; Mr Piening departing in Mazda 354 within five minutes of that call wearing black shorts, black shoes and a blue/grey long sleeved hooded top; the Mazda 354 travelling to Owen Street on as a direct route as was available over the next three minutes; the Mazda remaining stationary for 20 seconds at the junction of Bond Street with York Place for no apparent reason, giving an opportunity to prepare the firearm and face covering; on stopping in Owen Street the driver’s door opening and remaining open for 20 seconds; the man with the rifle as seen by Mr Ferro matching the appearance of Mr Piening; the man with the rifle wearing dark shorts, dark shoes and a long-sleeved hooded top consistent with the appearance of Mr Piening in the Leslie Street recordings; Mazda 354 being driven to and left at Romney Avenue, Mr Piening walking from Romney Avenue (across Torrens Road from Romney Avenue) to the Challa Gardens Hotel; and Mr Piening taking a taxi to his home at the Leslie Street house. Having regard to the combination of those factors and all of the relevant circumstances, I am satisfied beyond reasonable doubt that Mr Piening was the assailant.

The defence submits that it is a reasonable possibility that there were two persons who got in and out of Mazda 354 in Owen Street. The defence points first to the evidence of Mr Ferro who said that he saw a black man on the left side of the shooter, standing close to the shooter and further away from Mr Ferro than the shooter. Mr Ferro’s description of the position of the black man was as follows:
Q.    And you said there was a man, you saw a black man.
A.    Yes.
Q.    Is that as in an Australian Aboriginal man.
A.    I was too far to be sure.
Q.    Where was he in relation to the shooter when you saw him.
A.He was standing on the left side of the shooter, so further compared to where I was standing, it was a bit on the left of the shooter.
Q.    And how close to the shooter was he.
A.    Very close.
The defence submits that the black man seen by Mr Ferro cannot have been Mr Coulthard. However, I find that it was Mr Coulthard. Mr Coulthard’s evidence was that he had had a smoke in Mr Vincent’s car and was waiting nearby for Mr Vincent as requested. He saw a bloke walking up to Mr Vincent pointing a gun at Mr Vincent. It was at this point that he ran. This is essentially at the same time as Mr Ferro saw the assailant pointing a gun at Mr Vincent. Mr Ferro said that he was focusing on the man with the gun rather than the black man. It is unsurprising that he did not notice the black man run away. Given the perspective, it would have been difficult for Mr Ferro to judge how close the black man was to the shooter. In addition, Mr Coulthard’s evidence was that there was no one else in the area at the time. This was also Mr Vincent’s evidence. Moreover the black man on Mr Ferro’s evidence did not have a gun.
The defence submits that the car that Mr Ferro said the shooter and the black man were near was the silver hatchback (Mazda 354) and not Mr Vincent’s Ford Falcon. However, Mr Ferro’s evidence was clear. He described the vehicle as being on the eastern side of the road: Mr Vincent’s Falcon was on the eastern side and the silver hatchback was on the western side. He described the vehicle as being on the same side of the road as the house at which the shooter was aiming the rifle. He described the vehicle as a sedan and not a hatch.
The defence points secondly to the evidence of Mr Alizadeh, who saw a man holding a gun get into the silver car and made reference to the man getting into the passenger side. His evidence in chief included the following passages:
Q.    What did you see.
A.    I saw someone was holding a gun moving towards another car.
Q.I will ask you about the car the person was moving towards. Firstly, what colour was the car.
A.    Silver.
…
Q.    Did you see anyone else in the street.
A.    No.
Q.    This person, were they male or female.
A.    Male.
Q.    Did you notice what they were running away from.
A.    From the other side of the street, from another car.
Q.    Can you describe the other car.
A.    It was a sedan, we call, and it was green.
…
Q.Towards you, okay. The male that was going towards the silver car, did he get into it.
A.    Yes.
Q.    Which door did he get into.
A.    Driver.
Q.    Which side of the car did he get into; driver's or passenger.
A.    Passenger side.
In answer to the question “Which door did he get into”, Mr Alizadeh said “Driver”. It was only in answer to the next question that he said “Passenger side”. He did not see anyone else in the street and in particular, if he saw the man with the gun get into the passenger side, he did not see anyone get into the driver’s side. Mr Alizadeh gave his evidence through an interpreter. He was not cross-examined on the inconsistency between his penultimate and ultimate answers.
Mr Vincent gave evidence that only one person got out of the hatch. The Owen Street recording shows the driver’s door open, a man alight, cross the road, the driver’s door remaining open, the man returns from across the road, the driver’s door close and the vehicle depart. Mr Cummings saw a man cross the street and enter the driver’s side door. This evidence is inconsistent with Mr Alizadeh seeing a man get into the passenger seat but not the driver’s seat. I am satisfied that the man returning from across the road got into the driver’s seat and not the passenger seat.
The defence submits that it can be discerned from zooming in on the recording from Owen Street camera 3 that the right calf of the man exiting the driver’s door of Mazda 354 does not have a tattoo or dark marking. The defence submits that there is no evidence of any tattoos on the forearms of the man who exits from the driver’s door or the man who approaches and gets in through driver’s door. However, the recording is not of sufficient resolution to discern whether or not the man has a tattoo on his right calf or whether there are tattoos on the arms of the man who exits from the driver’s door or the man who approaches and gets in through the driver’s door.
The defence submits that it is a reasonable possibility that, assuming that Mr Piening drove Mazda 354 to Owen Street, he stopped at some point along the way and another person, who was the shooter, got in the vehicle. However, the Owen Street camera 3 recording shows a man get out of the driver’s door, head across the road, return from across the road and get into the driver’s seat. Further, Mr Vincent saw the assailant get out of the driver’s door. This evidence is inconsistent with a scenario where Mr Piening was the driver, and the passenger was the assailant. Further Mr Cummings saw only one person cross the road and get into the vehicle. Further Mr Alizadeh saw only one person cross the road and get into the vehicle.
Alternatively, if Mr Piening picked up the shooter and the shooter sat in the driver’s seat with Mr Piening remaining throughout the incident at Owen Street in the passenger seat, it would be an extraordinary coincidence if the shooter had the same appearance as Mr Piening, as described by Mr Ferro, and was also wearing dark shorts and dark shoes. It would also be an extraordinary coincidence that the shooter happened to live along the route between Leslie Street house and the Owen Street house. In addition, it is Mr Piening (alone) who is seen in the recordings walking away from the vicinity of Romney Avenue.
Neither scenario is a reasonable possibility having regard to the whole of the evidence.
The defence points to the absence of various evidence. No DNA or fingerprints of Mr Piening were found by the police in Mazda 354. This is neutral because there is no dispute that Mr Piening was driving Mazda 354 on 21 January 2021. No fingerprints of Mr Piening were located in the relevant taxi. This is also neutral. No DNA or fingerprints of any person were located on the cartridge picked up by Mr Vincent. This is again neutral. The clothing worn by Mr Vincent was not tested for DNA. Although this is unfortunate, it is neutral as to the identity of the assailant.
No gunshot residue examination was undertaken when Mr Piening was arrested on 26 January 2021. This has no probative value given the time that elapsed between the shooting on 21 January and Mr Piening’s arrest on 26 January 2021. Detective Hintz gave evidence that the reason why no gunshot residue examination was undertaken was this lapse of time.
The firearm used by the assailant was never located and hence there was no demonstrated link between Mr Piening and the firearm. There is no demonstrated link between the cartridge picked up by Mr Vincent and Mr Piening. There is no forensic evidence linking Mr Piening to the scene at the Owen Street house. No clothing, shoes, mask, gloves, firearms, ammunition or other items of interest were located in the search of the Leslie Street house. I take these matters into account but ultimately, they amount to an absence of evidence rather than being exculpatory or giving rise to a reasonable doubt.
The Suburban taxi was tested with luminol, being a presumptive test for the presence of blood, but there was no reaction. Given that the wound to Mr Vincent’s left leg may have been caused during a struggle with the assailant, it is possible that some of Mr Vincent’s blood might have been transferred to the assailant. However, this would depend on how quickly Mr Vincent’s leg started to bleed, the respective positions of Mr Vincent and the assailant when the firearm was discharged, and the movements of Mr Vincent and the assailant immediately after it was discharged. Whether any blood on the assailant would be transferred to a vehicle in which the assailant later sat would depend on multiple factors, including how much blood had been transferred, the site to which it was transferred, how the assailant entered and sat in the vehicle and what the assailant did between discharge of the firearm and entering the vehicle. On the state of the evidence, these matters are speculative. The mere fact that luminol did not detect the presumptive presence of blood is not significant.
Considering all relevant circumstances, there is no reasonable possibility consistent with innocence that Mr Piening was not the assailant.
Conclusion on count 2
The five elements of count 2 are:
1Mr Piening caused harm to Mr Vincent;
2the harm comprised serious harm;
3the act causing the harm was a conscious and voluntary act;
4Mr Piening acted unlawfully; and
5Mr Piening intended to cause serious harm at the time of the act.
For the reasons given in the previous section, I am satisfied beyond reasonable doubt that Mr Piening caused harm to Mr Vincent by shooting him in the right leg. Based on the agreed facts, I am satisfied beyond reasonable doubt that the harm to Mr Vincent’s right leg comprised serious harm. I am satisfied beyond reasonable doubt that the shooting was a conscious and voluntary act. I am satisfied beyond reasonable doubt that Mr Piening had no lawful excuse for shooting Mr Vincent. I am satisfied beyond reasonable doubt that Mr Piening intended at the time to cause serious harm by shooting Mr Vincent. I am satisfied beyond reasonable doubt that Mr Piening is guilty of the basic offence comprising count 2.
I am satisfied beyond reasonable doubt that Mr Piening committed the offence using an offensive weapon, namely a firearm. I am satisfied beyond reasonable doubt that Mr Piening is guilty of the aggravated offence comprising count 2.
Verdicts
I find Mr Piening not guilty of count 1.
I find Mr Piening guilty of count 2.